FILED OR RECORD
AT 'CLOCK_ •
NO. 201 /-CCL,131,3 OCT 2 4 2012
MANUEL SALINAS AND JUAN M. IN THE COUNTY COURT AT LAW
FIGUEROA CAM ON COL .1( CLERK
Plaintiffs, By 1-Prli' _Deputy
CATALINA PRESAS GARCIA,
Defendant. OF CAMERON COUNTY, TEXAS
PLAINTIFFS' ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COME MANUEL SALINAS and JUAN M. FIGUEROA, hereinafter called
Plaintiffs, complaining of and about CATALINA PRESAS GARCIA, hereinafter called
Defendant, and for cause of action show unto the Court the following:
DISCOVERY CONTROL PLAN LEVEL
1 Plaintiffs intend that discovery be conducted under Discovery Level 3.
PARTIES AND SERVICE
2. Plaintiff, MANUEL SALINAS, is an Individual whose address is in the Belle
Glade, Palm Beach County, Florida.
3. Plaintiff, JUAN M. FIGUEROA, is an Individual whose address is in
Brownsville, Cameron County, Texas.
4. Defendant CATALINA PRESAS GARCIA, an Individual who is a resident of
Texas, may be served with process at her office at the following address:
25 Skyview Dr.
Brownsville, Texas 78521
Service of said Defendant as described above can be effected by personal
PLAINTIFFS' ORIGINAL PETITION PAGE 1
JURISDICTION AND VENUE
The subject matter in controversy is within the jurisdictional limits of this
co u rt.
6. This court has personal jurisdiction herein because Defendant are Texas
7. Venue in Cameron County is proper in this cause pursuant to Section 17.56
of the Texas Business and Commerce Code and under Section 15.002(a)(1) of the Texas
Civil Practice and Remedies Code because all or a substantial part of the events or
omissions giving rise to this lawsuit occurred in this county.
8. On or about June of 2010, the Plaintiffs entered into an earnest money
contract for the sale of a home located at 113 Lucylle Lane, Brownsville, Cameron
County, Texas. Under the contract, Plaintiff JUAN M. FIGUEROA was to sell to Plaintiff
MANUEL SALINAS the above-described home. On the contract, Defendant CATALINA
PRESAS-GARCIA, signed as a representative of both the Seller and Buyer as an
intermediary. Plaintiff Manuel Salinas gave CATALINA PRESAS-GARCIA three cash
deposits to place in escrow with the title company, Sierra Title in Brownsville, Cameron
County, Texas. On each of the following occasions, Defendant CATALINA
PRESAS-GARCIA gave MANUEL SALINAS receipts for the cash deposits as follows:
June 5, 2010 - $ 500.00
July 8, 2010 - $ 5,500.00
November 14, 2010 $ 2,000.00
Total cash $8,000.00 (See Exhibit A)
PLAINTIFFS' ORIGINAL PETITION PAGE 2
Under the terms of the contract, Plaintiff MANUEL SALINAS was to give a cash
portion of the sale in the amount of $8,000.00 and finance $42,000.00 for a total purchase
price of $50,000.00.
9. After the November 14, 2010 deposit was placed with Defendant
CATALINA PRESAS-GARCIA, Plaintiffs continued to ask Defendant CATALINA
PRESAS-GARCIA why they could not close on the sale of the house and she continued
to give the parties excuses of why she could not close the transaction.
CATALINA PRESAS-GARCIA did not place the contract with Sierra Title in
Brownsville, Cameron County, Texas until January 26, 2011. At that time, CATALINA
PRESAS GARICA only deposited in Sierra Title's escrow account $500.00 although she
had collected a total of $8,000.00 as of November 14, 2010. On or about February 24,
2011, the parties showed up at the title company ready to close and Defendant,
CATALINA PRESAS-GARCIA told them that they could not close and the deal fell
through. Plaintiff, MANUEL SALINAS shortly thereafter asked for the return of his
$8,000.00 and was astonished to find out that as of March 14, 2011, only $500.00 of the
$8,000.00 had been deposited into the escrow account at Sierra Title Company.
Plaintiff, MANUEL SALINAS asked Defendant, CATALINA PRESAS-GARCIA where his
money was and she could not answer said question. He told her she better deposit the
money by March 18, 2011 or he was going to go the police authorities. On that date,
March 14, 2011, Defendant CATALINA PRESAS-GARCIA deposited $3,600.00 in cash
into the escrow account at Sierra Title Company (See Exhibit B). On March 18, 2011,
Defendant CATALINA PRESAS-GARCIA deposited two cash deposits (one deposit of
PLAINTIFFS' ORIGINAL PETITION PAGE 3
$2,900.00 and one deposit of $1,000.00) totaling $3,900.00 (See Exhibit C and D).
10. Defendant, CATALINA PRESAS-GARCIA violated the Rules of the Texas
Real Estate Commission §535.159 by not depositing the cash funds with Sierra Title
Company within two days from the receipt of the funds as required by said law.
DECEPTIVE TRADE PRACTICES
11. Plaintiffs would show that Defendant engaged in certain false, misleading
and deceptive acts, practices and/or omissions actionable under the Texas Deceptive
Trade Practices - Consumer Protection Act (Texas Business and Commerce Code,
Chapter 17.41, et seq.), as alleged hereinbelow.
12. Unconscionable Action or Course of Action. Defendant engaged in an
"unconscionable action or course of action" to the detriment of Plaintiffs as that term is
defined by Section 17.45(5) of the Texas Business and Commerce Code, by taking
advantage of the lack of knowledge, ability, experience, or capacity of Plaintiffs to a
grossly unfair degree.
13. Violations of Section 17.46(b). Defendant violated Section 17.46(b) of the
Texas Business and Commerce Code, in that Defendant:
(a) represented that an agreement confers or involves rights, remedies,
or obligations which it does not have or involve, or which are prohibited by law; and
(b) failed to disclose information concerning goods or services which
was known at the time of the transaction with the intention to induce the consumer
into a transaction into which the consumer would not have entered had the
information been disclosed.
PLAINTIFFS' ORIGINAL PETITION PAGE 4
14. Producing Cause. Plaintiffs would show that the acts, practices and/or
omissions complained of were the producing cause of Plaintiffs' damages more fully
15. Reliance. Plaintiffs would further show the acts, practices and/or
omissions complained of under Section 17.46(b) of the Texas Business and Commerce
Code were relied upon by Plaintiffs to Plaintiffs' detriment.
COMMON LAW FRAUD
16. Plaintiffs further show that Defendant, CATALINA-PRESAS GARCIA made
material false representations to Plaintiffs with the knowledge of their falsity or with
reckless disregard of the truth with the intention that such representations be acted upon
by Plaintiffs, and that Plaintiffs relied on these representations to their detriment.
17. Plaintiffs would further show that Defendant, CATALINA-PRESAS GARCIA
concealed or failed to disclose material facts within the knowledge of Defendant,
CATALINA-PRESAS GARCIA, that Defendant, CATALINA-PRESAS GARCIA knew that
Plaintiffs did not have knowledge of the same and did not have equal opportunity to
discover the truth, and that Defendant, CATALINA-PRESAS GARCIA intended to induce
Plaintiffs to enter into the transaction made the basis of this suit by such concealment or
failure to disclose.
18. As a proximate result of such fraud, Plaintiffs sustained the damages
described more fully hereinbelow.
FRAUD IN A REAL ESTATE TRANSACTION
19. Plaintiffs would further show that the false representations and/or promises
PLAINTIFFS' ORIGINAL PETITION PAGE 5
of Defendant constitute fraud in a real estate transaction as defined by Section 27.01 of
the Texas Business and Commerce Code.
20. Plaintiffs are therefore entitled to recover from Defendant actual damages
described more fully hereinbelow, reasonable and necessary attorney's fees, expert
witness fees, costs for copies of depositions, and costs of court as provided by Section
27.01 of the Texas Business and Commerce Code.
BREACH OF CONTRACT
21. Plaintiffs would further show that the actions and/or omissions of Defendant
described hereinabove constitute breach of contract, which proximately caused the direct
and consequential damages of Plaintiffs described hereinbelow, and for which Plaintiffs
BREACH OF FIDUCIARY DUTY
22. Defendant, CATALINA PRESAS-GARCIA breached her fiduciary duty to
hold the funds as required by law and instead used said funds for her use and enjoyment
in total violation of her fiduciary duties to the Plaintiffs.
ECONOMIC AND ACTUAL DAMAGES
23. Plaintiffs sustained the following economic and actual damages as a result
of the actions and/or omissions of Defendant described hereinabove:
(a) Out-of-pocket expenses, including but not limited to extra
taxes incurred and lost interest in the anticipated funds.
(b) Loss of use.
(c) Interest and/or finance charges assessed against and paid by
PLAINTIFFS' ORIGINAL PETITION PAGE 6
(d) Loss of the "benefit of the bargain."
24. Plaintiffs would show that the false, misleading and deceptive acts,
practices and/or omissions complained of herein were committed "knowingly" in that
Defendant had actual awareness of the falsity, deception, or unfairness of such acts,
practices, and/or omissions.
25. Plaintiffs further aver that such acts, practices, and/or omissions were
committed "intentionally" in that Defendant specifically intended that Plaintiffs act in
detrimental reliance on the falsity or deception or in detrimental ignorance of the
26. Therefore, Plaintiffs are entitled to recover multiple damages as provided by
17.50(b)(1) of the Texas Business and Commerce Code.
27. Plaintiffs would further show that the acts and omissions of Defendant
complained of herein were committed knowingly, willfully, intentionally, with actual
awareness, and with the specific and predetermined intention of enriching said Defendant
at the expense of Plaintiffs. In order to punish said Defendant for such unconscionable
overreaching and to deter such actions and/or omissions in the future, Plaintiffs also seek
recovery from Defendant for exemplary damages as provided by Section 41.003(a)(1) of
the Texas Civil Practice and Remedies Code and by Section 27.01 of the Texas Business
and Commerce Code.
PLAINTIFFS' ORIGINAL PETITION PAGE 7
28. The evidence will show that Defendant CATALINA-PRESAS GARCIA has
engaged in the same course of conduct before while working at the Aquatic Center at the
Brownsville Independent School District. The evidence will show that while working at
the BISD Aquatic Center, Defendant CATALINA-PRESAS GARCIA deposited hundreds
of dollars collected for the aquatic center into her personal bank account. This same
course of conduct entitles Plaintiffs to collect exemplary damages against Defendant,
29. Request is made for all costs and reasonable and necessary attorney's fees
incurred by or on behalf of Plaintiffs herein, including all fees necessary in the event of an
appeal of this cause to the Court of Appeals and the Supreme Court of Texas, as the
Court deems equitable and just, as provided by: (a) Section 17.50(d) of the Texas
Business and Commerce Code; (b) Section 27.01(e) of the Texas Business and
Commerce Code; (c) Chapter 38 of the Texas Civil Practice and Remedies Code; and, (d)
WHEREFORE, PREMISES CONSIDERED, Plaintiffs, MANUEL SALINAS and
JUAN M. FIGUEROA, respectfully pray that the Defendant be cited to appear and answer
herein, and that upon a final hearing of the cause, judgment be entered for the Plaintiffs
against Defendant for the economic, actual damages and exemplary damages requested
hereinabove in an amount in excess of the minimum jurisdictional limits of the Court,
together with prejudgment and postjudgment interest at the maximum rate allowed by
PLAINTIFFS' ORIGINAL PETITION PAGE 8
law, attorney's fees, costs of court, and such other and further relief to which the Plaintiffs
may be entitled at law or in equity, whether pled or unpled.
ZAYAS & HERNANDEZ, P.C.
3100 E. 14th St.
Brownsville, Texas 78521
RIC ARD E
State Bar No..
PLAINTIFFS HEREBY DEMAND TRIAL BY JURY
PLAINTIFFS' ORIGINAL PETITION
DATE Sl No. 267123
1227.71r•ne, 9% . FAZ14241
ORDER I a-
267107 No. 267151
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FILED FOR RECORD
ATJILW_O'CLOCK JIM •
OCT 2 4 2012
JOE G. RIVERA
CAMERON COUNTY CLERK
By 1•A'14"Deputy . -
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RECEIPT DATE / NO. 64 7 2
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